[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10782 ELEVENTH CIRCUIT
AUGUST 16, 2010
________________________
JOHN LEY
CLERK
D. C. Docket No. 07-00860-CV-ODE
MICHAEL BELL,
Petitioner-Appellant,
versus
FLORIDA ATTORNEY GENERAL,
SECRETARY DEPARTMENT OF CORRECTIONS,
Respondents-Appellees.
__________________________
Appeal from the United States District Court for the
Middle District of Florida
_________________________
Before TJOFLAT, BLACK and WILSON, Circuit Judges.
BY THE COURT:
Florida state prisoner Michael Bell, who received the death penalty for two
first-degree murders, appeals the dismissal, on timeliness grounds, of his 28
U.S.C. § 2254 habeas petition by the U.S. District Court for the Middle District of
Florida. The district court granted a certificate of appealability (“COA”) on the
following grounds:
(1) [W]hether Bell is entitled to tolling of the Anti-Terrorism and Effective
Death Penalty Act (“AEDPA”) statute of limitations because of late
appointment of collateral counsel; (2) whether Bell is entitled to equitable
tolling of the AEDPA statute of limitations; (3) whether Bell’s motion to
correct an illegal sentence entitles him to additional tolled time; and (4)
whether the statute of limitations should run from the time that collateral
counsel was appointed because that is when Bell was able to discover the
factual predicate of his claims.
D.E. 65 at 2.
The right to appeal from the denial of a habeas corpus petition is governed
by the requirements found at 28 U.S.C. § 2253(c). See Slack v. McDaniel, 529
U.S. 473, 478, 120 S. Ct. 1595, 1600 (2000). Pursuant to § 2253(c)(2), a COA
may issue “only if the applicant has made a substantial showing of the denial of a
constitutional right.” When a district court denies a habeas petition on procedural
grounds and does not reach the petitioner’s underlying constitutional claim, the
petitioner must show that (1) “jurists of reason would find it debatable whether the
district court was correct in its procedural ruling;” and (2) “jurists of reason would
find it debatable whether the petition states a valid claim of the denial of a
constitutional right.” Slack, 529 U.S. at 484, 120 S. Ct. at 1604; see also Gordon
v. Sec’y, Dep’t of Corr., 479 F.3d 1299, 1300 (11th Cir. 2007) (per curiam)
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(citation omitted) (applying Slack to a petition dismissed as untimely); Gonzalez v.
Sec’y for Dep’t of Corr., 366 F.3d 1253, 1265 (11th Cir. 2004) (en banc). Thus,
where a petition is denied on procedural grounds, determining whether a COA
should issue “has two components, one directed at the underlying constitutional
claims and one directed at the district court’s procedural holding.” Slack, 529 U.S.
at 484–85, 120 S. Ct. at 1604.
In Bell’s case, the district court erred in failing to specify whether jurists of
reason would find it debatable that Bell’s petition states a valid claim of the denial
of a constitutional right. See D.E. 65. Further, Bell made no substantial showing
of the denial of a constitutional right in his notice of appeal, see D.E. 50, which
the district court construed as a COA. See D.E. 65. As such, we VACATE the
district court’s order granting a COA as IMPROVIDENTLY GRANTED without
prejudice to re-application. In considering a re-application for a COA, the district
court must determine what claims, if any, in Bell’s petition for habeas corpus
make a “substantial showing of the denial of a constitutional right,” in addition to
whether reasonable jurists would find it debatable whether the district court was
correct in its procedural ruling on timeliness. 28 U.S.C. § 2253(c)(2); Slack, 529
U.S. at 484, 120 S. Ct. at 1604.
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